197.
As to the second element under consideration, the procedural activity of the next of kin, it
was not ascertained that they filed appeals or other incidents that might have justified the delay, or attempted
to obstruct the judicial proceedings or delay any decision related to it. On the contrary, it was established that
the petitioners were involved in different stages of the proceedings in order to substantiate their arguments
and advance the resolution of the civil action that was filed. 328
198.
In this regard, the analysis of the procedural record shows an attempt by the Federal Union
to delay the proceedings by filing different resources to prolong a final decision. 329
199.
As to the conduct of the authorities in the judicial proceedings, it appears that the process
shows long periods of inactivity attributable to the judicial authorities. This delay in the proceedings
evidently affected the legal status of the persons involved. The State presented no element whatsoever
leading to a different conclusion. In the instant case, the State did not present any arguments to demonstrate
the reasonableness of the approximately 17-year period between the filing of a civil action by relatives of
Vladimir Herzog in 1976, and the issuance of a final judgment in the process in 1994.
200.
For all of the above, the CIDH concludes that the duration of the proceedings of the civil
declaratory action was not reasonable, nor was it an effective recourse to ensure the rights of the victim and
his family, thereby the State incurred in a violation of Article XVIII of the American Declaration and of articles
8.1 and 25 of the Convention, in relation with Article 1.1 thereof, to the detriment of Clarice, André and Ivo
Herzog.
iii.
The criminal investigation within the ordinary jurisdiction
201.
As has been noted, in cases such as this one, with serious human rights violations, the
American Convention requires the adoption of positive measures to ensure the investigation, prosecution
and, if applicable, punishment of those responsible, and thus avoid impunity and the harmful effects it causes.
202.
The Inter-American Court has indicated that Article 8.1 of the American Convention sets
forth that the victims of human rights violations, or their next of kin, should have substantial possibilities of
being heard and of acting in the respective proceedings, in order to clarify the facts and punish those
responsible, and to search for proper reparation. The Court has also considered that the States have the
obligation to provide effective judicial remedies to all those claiming to be victims of human rights violations
(Article 25), remedies that must be substantiated in accordance with the rules of due legal process (Article
8.1), all within the general obligation, by such States, to guarantee the free and full exercise of the rights
recognized by the Convention to all persons subject to their jurisdiction (Article 1.1). 330
203.
In cases such as this, the obligation to investigate is reinforced by the provisions of Articles
1, 6 and 8 of the IACPPT, of which Brazil is a party since July 20, 1989, requiring the State to “take effective
measures to prevent and punish torture within [its] jurisdiction”, as well as to “prevent and punish […] any
other cruel, inhuman, or degrading treatment or punishment”. Indeed, according to jurisprudence of the
Court and the Inter-American Commission, the obligation to investigate and identify and punish those
responsible for serious human rights violations, such as torture, extrajudicial, summary or arbitrary
executions and forced disappearances, has an inalienable nature. 331 Furthermore, in accordance with Article 8
of this Convention, State Parties shall ensure: […] any person making an accusation of having been subjected
328 Proceso No. 2008.61.81.013434-2 Justiça Federal - São Paulo, Volume 2, fls.426/427, Petición de los autores en la Ação
Declaratória No. 136/76, of May 16, 1978; Proceso No. 2008.61.81.013434-2 Justiça Federal - São Paulo, Volume 4, fls. 744-779 –
Contrarrazões ao recurso de apelação en la Ação Declaratória No. 136/76, of February 14, 1978.
329 Proceso No. 2008.61.81.013434-2, Justiça Federal - São Paulo, Volume 1, fls. 88/123, Parecer do Ministério do Exército en la
Ação Declaratória No. 136/76, of May 26, 1976; Proceso No. 2008.61.81.013434-2, Justiça Federal – São Paulo, Volume 3, fls. 472/473,
Memorial de la Unión Federal en la Ação Declaratória No. 136/76, of June 15, 1978; Proceso No. 2008.61.81.013434-2 Justiça Federal São Paulo, Volume 5, fls. 1003 – Sentencia proferida en la Ação Declaratória No. 136/76, of October 27, 1978.
330 I/A Court H.R., Case of Torres Millacura et al. v. Argentina. Judgment of August 26, 2011. Serie C No. 229, para. 113.
331 IACHR. The Right to Truth in the Americas. OEA/Ser.L/V/II.152. Doc. 2. August 13, 2014. Para. 90.
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